20
51.
Additionally to the aforementioned, the Guatemalan system for the
administration of justice resulted ineffective in guaranteeing compliance of the law
and protection of the rights of the victims and their next of kin in almost the totality
of the violations committed against human rights during that period of time.66 Thus,
the lack of investigation into this type of facts constituted a determining factor in the
systematic practice of violations against human rights.
*
*
*
52.
Since its first judgment in the case of Velásquez Rodríguez,67 the Court has
reiterated that the forced disappearance of persons is a crime of a continuous or
permanent nature,68 and of a multiple offense nature, since it not only produces an
arbitrary deprivation of freedom, but it puts the personal integrity, safety and the life
itself of the detainee in danger. The permanent and multi-offense nature of the
forced disappearance of persons is reflected in Articles II and III of the InterAmerican Convention on the Forced Disappearance of Persons, which state, in what
is relevant, the following:
For the purposes of this Convention, forced disappearance is considered to be the act of
depriving a person or persons of his or their freedom, in whatever way, perpetrated by
agents of the state or by persons or groups of persons acting with the authorization,
support, or acquiescence of the state, followed by an absence of information or a refusal
to acknowledge that deprivation of freedom or to give information on the whereabouts
of that person, thereby impeding his or her recourse to the applicable legal remedies
and procedural guarantees.
[…]This offense shall be deemed continuous or permanent as long as the fate or
whereabouts of the victim has not been determined.
53.
The Court has established that in view of the nature of the rights violated,69 a
forced disappearance constitutes a grave violation of human rights that are nonderogable in character, producing a gross abandonment of the basic principles on
which the Inter-American system is based.70 In the present case, besides the forced
66
Cfr. expert opinion offered by Helen Mack Chang during the public hearing before the InterAmerican Court of Human Rights on April 30, 2008.
67
Cfr. Case of Velásquez Rodríguez v. Honduras, supra note 20, para. 155; Case of Goiburú et al.
v. Paraguay. Merits, Reparations, and Costs. Judgment of September 22, 2006. Series C. No. 153, paras.
81 through 85; and Case of Heliodoro Portugal v. Panama, supra noe 17, para. 106.
68
The European Court of Human Rights has also considered forced disappearance a continuous or
permanent crime. Loizidou v. Turkey, App. No. 15318/89, 513 Eur. Ct. H.R. (1996).
69
Cfr. Preamble of the Inter-American Convention on Forced Disappearance of Persons, which in
what is relevant states: CONSIDERING that the forced disappearance of persons of persons violates
numerous non-derogable and essential human rights enshrined in the American Convention on Human
Rights, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of
Human Rights.
70
Cfr. Case of Gómez Palomino v. Peru. Merits, Reparations, and Costs. Judgment of November 22,
2005. Series C No. 136, para. 92; Case of the Serrano Cruz Sisters. Preliminary objections. Judgment of
November 23, 2004. Series C No. 118, para. 105; and Case of Heliodoro Portugal v. Panama, supra note
17, para. 118.